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MEMORANDUM OF THE UNITED STATES IN SUPPORT
OF ITS OPPOSITION TO DEFENDANTS' MOTION TO COMPEL

INTRODUCTION

In this monopolization case, the United States alleges that AMR Corporation, American
Airlines, Inc., and AMR Eagle Holding Corporation ("defendants" or "American"), when
confronted with new, low-cost and low-fare competition on routes in and out of American's hub
at Dallas/Fort Worth International Airport ("DFW"), respond with a predatory strategy designed
to protect their monopoly. The predatory strategy includes flooding the newly competitive
routes with additional flights and slashing their fares -- until the entrant withdraws. Then
defendants curtail their service and raise fares.

The present dispute arises from defendants' efforts to discover, by interrogatory,
information contained in notes and memoranda memorializing interviews conducted during
various Department of Justice ("DOJ") law enforcement investigations and in anticipation of
litigation by DOJ attorneys. Defendants' interrogatory also seeks information that was supplied
to DOJ attorneys even if that information is not described in notes or memoranda.

Defendants' interrogatory number 2 provides:

With respect to the persons [from whom you solicited and/or received
information], identify in detail all material or principal facts supplied to you by these persons
that are relevant to your claims that American monopolized or attempted to monopolize any
relevant market for air service. For this purpose, relevant facts include facts relating to your
decision to investigate American with regard to these claims; facts relating to whether any of
American's fares are below any relevant measure of cost; facts relating to American's ability to
charge what you believe to be supracompetitive fares for air service to and from any airport or
city; facts relating to competition (from other air carriers providing air service or otherwise)
faced by American in providing air service to any airport or city; facts relating to the
identification of or definition of any relevant market; and facts relating to reasons other than
American's predatory conduct that any other carrier determined to enter or exit from city-pairs or
airport-pairs you claim American monopolized or attempted to monopolize.

In essence, defendants seek to require the United States to create a lengthy,
witness-by-witness summary, drawn from numerous interviews conducted during its
investigation of defendants' conduct, and during four other investigations into allegations of
monopolization in the airline industry.(1)

During its investigations, DOJ's Antitrust Division gathers information by means of
voluntary, informal interviews conducted by attorneys.(2)
The attorneys who conduct the interviews generally take notes, and frequently, an attorney, or a
paralegal under the supervision of an attorney, prepares a memorandum after the interview.(3) The notes and memoranda generated in connection with
these interviews reflect the attorneys' choice of which questions to ask the interviewee and what
answers to describe. Far from being verbatim statements, these notes and memoranda are
summaries of the attorneys' understanding of information supplied during the interview. They
highlight specific issues of interest to the legal analysis, and often summarize the reasons the
interview was conducted; characterize the importance of the information learned; draw
inferences based on that information; describe the lawyers' impressions concerning the
cooperation, credibility or knowledge of the interviewee; and identify potential areas of further
inquiry. In other words, the contents of the notes and memoranda provide a snapshot of the
mental impressions and strategy of the DOJ's attorneys conducting and attending the
interviews.(4) The memoranda are not shown to the
person(s) interviewed nor to anyone else who is not an employee or agent of the DOJ. (Conrath
Decl. (Ex. 1) at ¶ 5.)

Counsel conferred a number of times about American's demand for a witness-by-witness
recitation of the United States' notes and memoranda. Counsel for the United States explained
that such a summary inherently discloses work-product -- thought processes, selection of issues
to cover, and selection of information to describe. Counsel for the United States also requested
examples of interrogatories calling for information on a witness-by-witness basis that American's
local counsel had answered without raising a work-product objection. No such examples have
been provided. (Id. at ¶ 3.)

The United States agrees that defendants are entitled to factual information underlying
the claims asserted. The United States' objections to Interrogatory 2 are based on the way that
American seeks disclosure of facts -- with a single interrogatory that encompasses the United
States' entire case and in a format that would necessarily reveal protected work-product, for
which no showing of need has been made.

ARGUMENT

I.

DEFENDANTS' INTERROGATORY NO. 2 IMPERMISSIBLY SEEKS
PRODUCTION OF GOVERNMENT WORK-PRODUCT AND OTHERWISE IS OVERLY BROAD AND UNDULY BURDENSOME

Defendants' interrogatory suffers from two fatal defects. First, as Hickman v.
Taylor, 329 U.S. 495 (1947), and its progeny teach, because the interrogatory requires the
United States "to state in substance any facts learned through oral statements of
witnesses to [the government's attorneys]," the interrogatory impermissibly seeks disclosure of
the government's work-product and should not be enforced. Id. at 509. Second, under
this court's precedent, the interrogatory is overly broad and unduly burdensome because it
requires the United States to create and provide the equivalent of a lengthy narrative or
otherwise detailed account, witness by witness, of its entire case.

Defendants do not dispute that the source of the "facts" they seek -- other than documents
obtained from third parties which have already been produced -- are the interviews with third
parties that the Department's Antitrust Division conducted in anticipation of this and other
litigation.(5)Hickman and numerous cases decided
since then, however, establish that forcing a party to summarize the facts obtained from each
person interviewed in anticipation of litigation would impermissibly reveal protected
work-product. Defendants have made no showing of need, nor asserted that any of these
witnesses are unavailable. Thus, American's interrogatory should not be enforced.

Hickman v. Taylor Does Not Support Enforcing Defendants'
Interrogatory.

In Hickman, three days after a tug boat sank drowning five crew members, the
tug owners retained counsel ("Fortenbaugh") to defend them in any future litigation. During his
investigation of the accident, Fortenbaugh interviewed the survivors, who subsequently signed
the written statements he prepared from those interviews. He also interviewed several witnesses
and committed to writing what some of them told him. 329 U.S. at 498. In a subsequent Jones
Act case brought on behalf of one of the deceased crew members, plaintiff served an
interrogatory asking defendants to identify from whom they had received statements, and then
continued: "Attach hereto exact copies of all such statements if in writing, and if oral, set forth in
detail the exact provisions of any such oral statements or reports." Id. at 498-99.

After hearing defendants' objections, the district court enforced the interrogatory and
ordered defendants to produce the signed witness statements, and to "state in substance any
fact concerning this case which defendants learned through oral statements made by
witnesses to Mr. Fortenbaugh whether or not included in his private memoranda." Id. at
499-500 (emphasis added). As the Supreme Court explained, "the court simply ordered
production on the theory that the facts sought were material and were not privileged."
Id. at 509. Indeed, because the district court was ordering production only of
non-privileged facts, "Fortenbaugh was to submit any memoranda he had made of oral
statements so that the court might determine what portions should be revealed to [the plaintiff]."
Id.

The Supreme Court disagreed with the trial court, noting that plaintiff had "made more
than an ordinary request for relevant, non-privileged facts in the possession of his adversaries or
their counsel." Id. at 508. Rather, the Court continued, plaintiff had made "an attempt
to secure the production of written statements and mental impressions contained in the files and
the mind of the attorney Fortenbaugh." Id. at 509.(6) Emphasizing that "[i]n performing his various duties . . . it
is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion
by opposing parties and their counsel," and that "[t]his work is reflected, of course, in
interviews, statements, memoranda, correspondence, briefs, mental impressions, personal
beliefs, and countless other tangible and intangible ways," the Court concluded that such
attorney work-product "falls outside the arena of discovery." Id. at 510-11.

Because plaintiff had offered no justification for production of these materials, the Court
held that the trial court improperly ordered Fortenbaugh to produce his work-product. The
Court first held that Fortenbaugh did not need to produce the signed witness statements unless
plaintiff had "establish[ed] adequate reasons to justify production," such as the unavailability of
the witness. Id. at 511-12. It then continued:

[A]s to oral statements made by witnesses to Fortenbaugh, whether presently in
the form of his mental impressions or memoranda, we do not believe that any showing of
necessity can be made under the circumstances of this case so as to justify production. Under
ordinary conditions, forcing an attorney to repeat orwrite out all that witnesses
have told him and to deliver the account to his adversary gives rise to grave dangers of
inaccuracy and untrustworthiness. No legitimate purpose is served by such production.
The practice forces the attorney to testify as to what he remembers or what he saw fit to write
down regarding witnesses' remarks. Such testimony could not qualify as evidence; and to use it
for impeachment or corroborative purposes would make the attorney much less an officer of the
court and much more an ordinary witness. The standards of the profession would thereby suffer.

Id. at 512 (emphasis added).

In 1970, the "work-product doctrine" established in Hickman was "substantially
incorporated in Federal Rule of Civil Procedure 26(b)(3)." Upjohn Co. v. United
States, 449 U.S. 383, 397-98 (1981). As that rule explains, the doctrine protects from
discovery "documents and tangible things . . . prepared in anticipation of litigation or for trial by
or for another party or by or for that other party's representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or agent)," unless the party seeking discovery
makes a showing of "substantial need." Fed. R. Civ. P. 26(b)(3).

Hickman and Upjohn, however, concerned a special type of
work-product -- "work-product which is based on oral statements from witnesses."
Upjohn, 449 U.S. at 401. Asking an attorney to state what a witness told him is
necessarily selective of the portions of the interview that the attorney concluded were important
enough either to record on paper or to retain in memory. Thus, because forcing an attorney to
reveal what a witness told him "tends to reveal the attorney's mental process," the Court
explained, "Rule 26 and Hickman make clear [that] such work-product cannot be
disclosed simply on a showing of substantial need . . . . [Rather], a far stronger showing of
necessity and unavailability by other means . . . [is] necessary to compel disclosure."
Id. at 399, 401-02.(7) To that end, Rule 26(b)(3)
specifically provides that when requiring production of any work-product, "the court shall
protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of
an attorney or other representative of a party concerning the litigation." Moreover, even though
Rule 26(b)(3) on its face applies only to "documents and tangible things," Hickman
holds that this heightened protection for work-product based on witness statements applies
whether the interview is memorialized on paper or exists only in the attorney's mind as "mental
impressions." 329 U.S. at 512-13; seeUpjohn, 449 U.S. at 399; United
States v. One Tract of Real Property, 95 F.3d 422, 428 n.10 (6th Cir. 1996)
(Hickman work-product protection applies to interrogatories and depositions);
Maynard v. Whirlpool Corp., 160 F.R.D. 85, 87 (S.D. W.Va. 1995) (same); Niagara
Mohawk Power Corp. v. Stone & Webster Eng'g Corp., 125 F.R.D. 578, 586
(N.D.N.Y. 1989) ("protected work-product contained in documents and tangible things cannot
be obtained through less tangible methods such as . . . deposition questioning").

Despite the history of the work-product doctrine and, specifically, the facts and holding
in Hickman, defendants now claim -- as of right and without any showing of need --
that they can require the government to tell what facts government attorneys learned during each
of their interviews. Indeed, defendants completely ignore the facts and holding in
Hickman, and instead rely on that Court's broad statement that "either party may compel
the other to disgorge whatever facts he has in his possession." 329 U.S. at 507 (quoted in
Defendants' Memorandum of Law ("Memo") at 6-7). But that passage must be read in the
context of the Court's holding that the district court erred when it ordered defendant to divulge
all non-privileged, material facts by "stat[ing] in substance any fact concerning th[e]
case which defendants learned through oral statements made by witnesses to Mr. Fortenbaugh."
Id. at 500, 509 (emphasis added). Thus, even though a party can force its opponent to
disgorge facts, the Court refused to require an attorney to explain what facts he learned from
each witness interviewed. Yet that is exactly what defendants are attempting here.

There can be no doubt that what the Court found objectionable in Hickman was
plaintiff's attempt to force Fortenbaugh to couple the facts he knew with the witnesses from
whom he obtained them. The Court explained that through the use of other properly worded
interrogatories, plaintiff had made "the most searching inquiries of his opponents," and that the
answers to those interrogatories "necessarily have included all pertinent information
gleaned by Fortenbaugh through his interviews with the witnesses." Id. at 508-09
(emphasis added). And in explaining that under its holding a party would "not be unduly
hindered in the preparation of his case [or] in the discovery of facts," the Court emphasized that,
among other things, "[s]earching interrogatories directed to Fortenbaugh and the tug owners . . .
all serve to reveal the facts in Fortenbaugh's possession." Id. at 513
(emphasis added). Since the Court foresaw that properly worded interrogatories could provide
"all pertinent information gleaned by [an attorney] through his interviews," yet nonetheless
refused to require the attorney to tell plaintiff what facts each witness told him, it was clearly
plaintiff's attempt to couple facts with specific interviews that the Court concluded would
improperly reveal work-product.

Consequently, it merely begs the question to simply claim, as defendants do, that their
interrogatory seeks only "principal or material facts." (Memo at 9);
seeHickman, 329 U.S. at 509 (explaining that trial court had limited discovery
to material, non-privileged facts). Instead, it is the way in which defendants attempt to force the
government to state those facts that causes the problem. If the law was as defendants claim, the
Hickman Court would have affirmed the district court. Rather, as one court has put it:
"The issue here presented is not whether defense counsel have a right to learn the relevant
factual information, but whether they have a right to that information in a particular form."
In re Convergent Technologies, 122 F.R.D. 555, 558 (N.D. Cal. 1988).

Cases Decided Since Hickman Do Not Support Enforcement of Defendants'
Interrogatory.

Since Hickman, the courts, except for the recent Dentsply(8) case on which defendants rely, consistently have held that a
party is not entitled to discover facts in a way that reveals an attorney's work-product. The
United States is not aware of any decision, except Dentsply, that has condoned the form
in which defendants seek discovery here -- a summary of the facts learned from each person who
was interviewed by a party's counsel during the course of trial preparation.

United States v. District Counsel, No. 90 Civ. 5722 (CSH) (S.D.N.Y. Aug. 18,
1992) (Ex. 2) , is instructive. The District Counsel had noticed a deposition seeking the
testimony of a representative of the United States Attorney's office concerning the facts and
circumstances surrounding the allegations in the complaint. In arguing that the FBI agent
designated to testify had to identify witnesses and documents known to her that possessed or
contained facts supporting the allegations in the complaint, the District Counsel contended -- as
American does -- that "facts relevant to the case . . . do not constitute work-product and are
clearly discoverable." Id. at *4. The government argued that the defendant could not
require individual government agents to identify people they spoke with or documents they
reviewed, or what they learned in the course of their investigation. Id.

The court agreed with the government, explaining that while "facts are not protected by
the work-product doctrine," it was "the context in which this information [was] sought [that]
raise[d] work-product concerns." Id. at *11. Thus, because the FBI agent was not a
party or otherwise "the repository of all of the information the Government possesse[d] that
[was] relevant to th[e] case," her answers would be selective because what she knew was either
learned through her own investigation or told to her by counsel. Id. at *12. The court
concluded that "her selective revelation of information will no doubt indicate particular
documents or witnesses to which she and her supervising attorneys attach the greatest
significance." Id. As to revealing the facts she learned from any particular witness
during her investigation, the court held that "information is classic work-product." Id. at
*11.

Requiring the United States in this case to summarize what its attorneys learned during
each interview would produce the same result found unacceptable in District Counsel.
If the United States had to tell defendants what "principal or material facts" each person
supplied, defendants could distill "particular . . . witnesses to which [government counsel]
attach[es] the greatest significance." Id. at *12. Moreover, by learning what type of
information was sought from particular individuals, defendants could discern the investigatory
techniques and trial strategies of the United States, including its counsel's tactical or strategic
thoughts.

In re Convergent Technologies, 122 F.R.D. 555 (N.D. Cal. 1988), is also on
point. There the court refused to require an attorney to produce purely factual interview notes
that the witnesses had subsequently adopted. In "emphatically reject[ing]" the defendants' claim
"that witness statements fall outside the work-product doctrine when they contain only facts," the
court noted that even in Hickman "there is no reason to believe that the witness
statements at issue . . . were anything but factual." Id. at 558.(9)

In holding that production of the notes would impermissibly reveal work-product, the
court explained that the true purpose for acquiring a witness statement from another lawyer is "to
learn the version of the facts that is set forth in the statement" -- i.e., to learn what
specific facts were obtained with each interview. Id. at 558. And there is no difference
between forcing an attorney to produce his purely factual interview notes or forcing him to write
out those same facts as an answer to an interrogatory in a way that nonetheless provides "the
version of the facts that is set forth in the [interview notes]." SeeNiagara
Mohawk, 125 F.R.D. at 586 ("protected work-product contained in documents . . . cannot
be obtained through less tangible methods such as . . . depositions [or interrogatories]").

Indeed, in rejecting that same ploy, the Hickman Court noted that plaintiff's
counsel had already obtained all the relevant facts through other discovery (329 U.S. at 508-09),
and wanted, as does American, to learn specifically what each witness knew "only to help
prepare himself to examine [those] witnesses." Id. at 513. See Memo at 4, n.4.
(explaining that American's interrogatory is intended to provide it "the opportunity to make
informed decisions about which of the more than 161 potential witnesses it should depose").
What was found unacceptable in Hickman has not become any more acceptable with the
passage of time. As in Hickman, if defendants want that factual information about
particular witnesses, it "is readily available to [defendants] direct from the witnesses for the
asking." Id. at 513; accordid. at 508-09 (same), 518 (Jackson, J.,
concurring).(10) To this end, defendants' citation to
Eoppolo v. Nat'l R.R. Passenger Corp., 108 F.R.D. 292 (E.D. Pa. 1985) (Memo at 8),
while misplaced, is certainly instructive. In Eoppolo, the court enforced an
interrogatory that provided: "State in detail the information you or any of your representatives
have or are aware of relating to the accident." As the court noted, the interrogatory "essentially
ask[ed] for all information that defendant has obtained relating to plaintiff's case." Id.
at 293.(11) Significantly, the interrogatory did not require
the defendant to link specific facts to specific interviews. Rather, it allowed the defendant to
provide facts in a way that would not reveal counsel's thought process, strategy, or evaluation of
the evidence in the case. Thus, rather than supporting defendants, Eoppolo
demonstrates the fatal error in the interrogatory here at issue.(12)

In short, a party cannot be forced to produce "facts" in a way that reveals the attorney's
investigatory techniques, thoughts, opinions, conclusions, strategy or tactics. Such strategy and
tactics include identifying topics to cover in any particular interview. Such thoughts and
opinions include deciding what information is important enough to record and to remember.
Because defendants' interrogatory seeks that exact result, it cannot be enforced.(13)SeeIn re Grand Jury Proceedings, 473
F.2d 840 (8th Cir. 1973) (holding that a lawyer could not be compelled to tell a grand jury his
"interviewees' assertions of fact"); Shultz v. United Steelworkers, Civ. Action No.
69-919 (W.D. Pa. June 10, 1970)(rejecting an interrogatory that required plaintiff to tie specific
facts to specific witnesses)(Ex. 3); Uinta Oil Refining Co. v. Continental Oil Co., 226
F. Supp. 495, 498-502 (D. Utah 1964) (rejecting interrogatories that would reveal "the substance
of numerous conversations which would be known only through interviews of counsel");
Harvey v. Eimco Corp., 28 F.R.D. 380 (E.D. Pa. 1961) (noting that interrogatories
cannot be used to obtain, in substance, a summary of statements obtained in preparation for
trial).

In addition to violating "the general policy against invading the privacy of an attorney's
course of preparation," defendants' interrogatory presents other problems. Hickman v.
Taylor, 329 U.S. at 512. Indeed, the Hickman Court noted several potential
dangers with requiring an attorney to divulge what he learned during an oral interview. First, it
would "force[] the attorney to testify as to what he remembers or what he saw fit to write down
regarding witnesses' remarks." Id. at 513. This, of course, "gives rise to grave dangers
of inaccuracy and untrustworthiness." Id. Moreover, such a statement "could not
qualify as evidence; [and] to use it for impeachment or corroborative purposes would" be
improper and problematic. Id.

Dentsply Is Inconsistent With Hickman and Its Progeny.

Finally, the United States respectfully submits that the ruling in Dentsply is
inconsistent with Hickman and its progeny. While Dentsply enforced an
interrogatory that required the government to state the facts provided by each person it
interviewed, as defendants seek here, none of the cases cited by the court -- or indeed cited by
defendants in their motion to compel -- enforced or support enforcing such an interrogatory.
And we know of no such case.

Thus, although Dentsply cites Bogosian v. Gulf Oil Corp., 738 F.2d
587 (3d Cir. 1984), Bogosian dealt specifically with "the interaction between Fed. R.
Civ. P. 26(b)(3) [work-product] and 26(b)(4) [expert witnesses]." Id. at 589. The court
there merely decided that plaintiffs were entitled to a copy of the documents given to defendants'
expert witnesses to use in preparing their opinions. The court was careful to note, however, that
the discoverable "facts" did not include any of defense counsel's thoughts and opinions that were
contained in the documents. It therefore ordered the district court to examine the documents
incamera "to redact the document so that full disclosure is made of facts
presented to the expert and considered in formulating his or her opinion, while protection is
accorded the legal theories and the attorney-expert dialetic." Id. at 595. Nothing there
supports enforcing the interrogatory here.

Farran v. Johnson Equip., Inc., Civ. No. 93-6148 (E.D. Pa. Sept. 12, 1995)(Ex.
4)(quoted in Memo at 8), concerned only enforcement of interrogatories in which "plaintiff
request[ed] factual information regarding whether conversations took place and among whom.
However, in those particular [interrogatories], defendant [was] not being asked to give the
substance of those statements." Id. at *3 With respect to other interrogatories that did
"request the substance of any of the conversations," the court noted that defendant had provided
absolutely no information to allow it to evaluate whether any conversation was either privileged
or protected as work-product. It therefore gave the defendant an opportunity to do so.
Id. at *4.

The other cases cited in Dentsply similarly provide no support for compelling
the creation and production of a witness-by-witness summary. Eoppolo, as noted
above, did not concern an interrogatory that required tying facts to specific interviews.
Similarly, in In re Dayco Corp., 99 F.R.D. 616 (S.D. Ohio 1983), the court enforced
interrogatories that merely asked plaintiffs to identify the people with knowledge of the events
alleged in the complaint, and to state the grounds of the allegations. Indeed, the court
specifically noted that what was being ordered produced were the names of people from whom
counsel obtained information, that it likened to "a list of 'occurrence witnesses,' which are
discoverable at any time." Id. at 624. The United States has already produced the
names, addresses, and telephone numbers of such people.

Dentsply's (and defendants') citation to Musko v. McCandless, Civ. No.
94-3938 (E.D. Pa. Sept. 29, 1995)(Ex. 5)(cited in Memo at 8), is truly curious, because that case
does not apply the work-product doctrine at all. Indeed, it is not even clear that any of the
information at issue was prepared or obtained "in anticipation of litigation." Rather, the case
involved the plaintiff's attorney's conduct -- when plaintiff was involuntarily committed, the
attorney allegedly told the committing physician-defendant "that plaintiff was 'eccentric,' 'manic'
and 'depressed.'" Finding that the attorney was a "fact witness," the court refused to issue a
protective order preventing his deposition. Id. at *1. Finally, as noted above, the last
two cases cited in Dentsply, Convergent Technologies, supra, and
Laxalt v. McClatchy,(14)

actually prohibited any discovery that would have linked specific information to individual
interviews.

The additional citations offered by American similarly provide no support for enforcing
its interrogatory. Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995)
(cited in Memo at 7), is a sanctions case in which government counsel instructed a deposition
witness not to answer any questions unless government counsel first allowed him to
answer. The court merely held that counsel's "blanket work-product objection" was improper
because counsel "did not meet his burden of proving that each question he instructed
[the witness] not to answer called for work-product." Id. at 266 (emphasis added). In
Starlight Int'l, Inc. v. Herlihy, 186 F.R.D. 626 (D. Kan. 1999) (cited in Memo at 7), the
court merely held that the work-product doctrine does not protect discussions between
co-defendants "which occurred outside the presence of counsel and without direction by an
attorney." Id. at 645-46.

In Swarthmore Radiation Oncology, Inc. v. Lapes, 155 F.R.D. 90 (E.D. Pa.
1994) (cited in Memo at 7), the court enforced an interrogatory that stated five specific facts and
asked for the names of any person who had stated any of those facts to the plaintiffs.
Id. at 92. To prevent plaintiffs from revealing counsel's inferences drawn from any
particular interview, however, the court cautioned that plaintiffs only had to disclose those
instances where a witness' "explicit statement" matched the fact set forth in the interrogatory.
Id. at 93. That interrogatory in no way resembled defendants' Interrogatory No. 2 at
issue here. In Feldman v. Pioneer Petroleum, Inc., 87 F.R.D. 86 (W.D. Okla. 1980)
(cited in Memo at 7-8), the court held that the work-product doctrine did not apply to three
deposition questions asking for very specific factual material -- such as the names of people who
attended a particular meeting, and whether "Plaintiffs' Exhibit 22" contained the "'copies of
certain General Ledger entries'" referred to in a particular letter. Id. at 89. Again, the
interrogatory at issue here cannot be described as seeking very specific factual material.

Finally, American can find no solace in Mike v. Dymon, Inc., Civ. No. 95-2405-EEO
(D. Kan. Nov. 14, 1996)(Ex. 6) (cited in Memo at 7). There the court specifically found that
defendant had provided no information to establish the applicability of the work-product
doctrine, as required by Federal Rule of Civil Procedure 26(b)(5). Id. at *9. It
therefore concluded that the interrogatory at issue "does not ask for the content of a
work-product document." Id. Indeed, it would be pure speculation to conclude that any
attorney-witness interview was even at issue in that case. Here, all of the information defendants
seek was obtained during attorney-witness interviews. And that information is possessed by the
United States only in the form of the attorneys' interview notes or memoranda, or in the
attorneys' minds. As such, it is "classic work-product." United States v District
Counsel, supra at *10 (Ex. 2). Thus, by asking for the facts as provided by each
person interviewed, defendants are attempting an "impermissible inquiry as to the content of
[work-product documents]." Starlight Int'l, 186 F.R.D. at 646.

In sum, other than stating the general proposition announced in Hickman itself --
i.e., a party is entitled to discover facts -- the cases cited by American and
Dentsply do not support an order that attorneys' interviews conducted in anticipation of
litigation be produced in a form that links each piece of information with each witness who
provided it. As explained above, merely stating the general proposition simply begs the real
question -- would the form in which the facts are sought impermissibly reveal
attorney work-product? The answer in Dentsply was "yes" so the court should not have
ordered production. Similarly, enforcing defendants' interrogatory here would erroneously result
in production of work-product.

American Has Made No Showing of Need to Justify Discovery of
Work-Product

A party seeking another party's work-product must show both a substantial need for the
information and that it would suffer undue hardship to obtain the substantial equivalent of the
materials by other means. Fed. R. Civ. P. 26(b)(3). As noted above, to obtain work product
based on attorneys' witness interviews, a much stronger showing of necessity and witness
unavailability is required, if it is producible at all. Seesupra at p. 8. A party
cannot demonstrate undue hardship if that party can depose or otherwise interview the witnesses
itself. Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984).

American claims that it needs the witness-by-witness summaries of the United States'
interview notes and memoranda to make "informed decisions about which of the more than 161
potential witnesses it should depose" but does not assert that any witnesses are unavailable for an
interview or a deposition. The United States has provided the last known addresses and phone
numbers of these individuals, and American is free to contact every one.

American seems to be suggesting that, because the DOJ conducted a pre-complaint
investigation that included third party interviews to which American was not privy, the United
States must now make available its work product so that American can "catch up." This is not
only an inadequate basis to overcome the work product doctrine, but it is specious.

When the parties to this litigation met to discuss case scheduling, both sides expressed a
desire to get to trial as quickly as possible. At no time during that meeting or subsequently,
however, did counsel for the United States indicate that it would waive its work-product
protection, or that it would produce witness-by-witness summaries as ordered in
Dentsply as a quid pro quo for what American describes as an "aggressive
pre-trial schedule." Memo at 4;. (Conrath Decl. (Ex. 1) at ¶ 7). On the other hand, the
United States agreed to disclose, at American's request, information relating to its
other investigations of anticompetitive conduct in the airline industry, as well as
information relating to the investigation that led to the filing of this case. (Id. at
¶6.) Accordingly, the United States' Rule 26(a) Disclosure identified 180 persons and/or
entities who supplied information to the Antitrust Division in connection with the investigation
of American and with now closed investigations (open at any time since January of
1993, the earliest date alleged with particularity in the United States' complaint) where those
investigations encompassed an issue similar to any issues alleged in this case. See Ex.
B to Memo. To help focus American's discovery, the United States identified the 47 persons and
entities who supplied information in connection with the investigation leading to the filing of
this case against American on a separate list. (Conrath Decl. (Ex. 1) at ¶ 8.) On August
26, 1999, American served its First Set of Interrogatories, which the United States answered on
September 27, 1999. In its answers to Interrogatories 3-9, the United States provided substantial
additional detail about the basis for its case. The United States' answer to Interrogatory No. 1
identified 159 individuals, each of whom had already been disclosed in the Rule 26(a)
Disclosure. (Ex. 7).

Having insisted on an overbroad disclosure reaching beyond the investigation that
preceded the filing of this case, American now argues that it must assess every one of these 159
persons for their knowledge of issues relevant to this case, even though only 47 of them supplied
information in connection with the investigation of American. With no showing that these
individuals will not speak to its counsel voluntarily,(15)
American then complains that the current 50-deposition limit makes such an assessment
impossible. Hence, American contends, the United States' must make available its
work-product. This does not constitute a showing of need within the meaning of the case law.
To the extent that American's motion to compel suggests a perceived imbalance in access to
evidence, there is no such imbalance nor could it justify the order that American seeks.

Defendants' Blockbuster Interrogatory Is Overly Broad
and Unduly Burdensome Because It Requires a Narrative Account of the United States' Entire Case

If defendants' Interrogatory No. 2 asked for the principal and material facts that support
a single allegation, the United States would not have objected that the interrogatory
is overly broad and unduly burdensome. However, Interrogatory No. 2 asks the United States to
"identify in detail all material or principal facts" relevant to the claims that American
monopolized or attempted to monopolize any relevant market for air service. This single
interrogatory encompasses virtually all of the allegations in the United States' 57-paragraph
complaint (Ex. 8), which charges defendants with monopolization and attempted monopolization
of various DFW markets. Specifically, except for Paragraphs 8-12, which describe the
defendants and allege jurisdiction, 52 paragraphs of the complaint contain the allegations
supporting those two claims.(16)

Of course a party may seek by interrogatory the factual basis of the opposing party's
allegations. Continental Illinois Nat'l Bank & Trust Co. v. Caton, 136 F.R.D. 682,
684 (D. Kan. 1991). However, the party must limit each interrogatory to a discrete issue.
SeeLawrence v. First Kansas Bank & Trust Co., 169 F.R.D. 657, 662-64
(D. Kan. 1996)(a party need not respond to an interrogatory addressing 58 of 79 total paragraphs
of the complaint). An interrogatory that encompasses multiple issues requires the opposing
party to provide a detailed "narrative or description of the entire case." Hilt v. SFC
Inc., 170 F.R.D. 182, 188 (D. Kan. 1997). Such "blunderbuss interrogatories" are overly
broad and unduly burdensome. Lawrence, 169 F.R.D. at 663-64 (quoting
William W. Schwarzer et al., Civil Discovery and mandatory Disclosure: A Guide to Efficient
Practice, 4-10 to 4-11 (2d ed. 1994))("Schwarzer"). For example, in Hilt, the court
sustained objections to four "blockbuster" interrogatories that asked for all facts supporting all of
the allegations of four counts of the complaint. 170 F.R.D. at 186-87. The court found the
interrogatories overly broad and unduly burdensome because they "would require plaintiff to
provide the equivalent of a narrative or otherwise detailed account of her entire case in chief,
together with identification of virtually all supporting evidence for each fact." Id. at
186.

Defendants attempt to distinguish Interrogatory No. 2 from those in Lawrence
and Hilt by limiting their request to only the "material or principal" facts relevant to the
United States' two claims. This argument is without merit -- not because their interrogatory
excludes facts of lesser importance, but because the interrogatory covers too many issues. Given
the number of people for whom defendants seek a summary of information supplied, an answer
to Interrogatory No. 2 would run dozens of pages. A comprehensive interrogatory remains
overbroad despite the insertion of the "material or principal" language. SeeHiskett
v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 404-05 (D. Kan. 1998)("Interrogatories
which do not encompass every allegation, or a significant number of allegations, of the
Complaint, reasonably place upon the answering party 'the duty to answer them by setting
forth the material or principal facts'")(emphasis added); IBP, Inc. v. Mercantile Bank ,
179 F.R.D. 316, 321 (D. Kan. 1998)(distinguishing interrogatories from those in
Lawrence and Hilt because they did not "simply sweep the entire complaint"
and were limited to specific, discrete issues). The Hilt Court did not attempt to cure the
objectionable interrogatories by limiting them to the "material or principal" facts sought.
Instead, it simply held that the party "need not respond to them." 170 F.R.D. at 188.

Interrogatory No. 2 is also distinguishable from the more limited interrogatories
propounded in In re Savitt/Adler Litig., 176 F.R.D. 44 (N.D.N.Y. 1997)(cited in Memo
at 10), where defendant sought facts supporting specific allegations that (1) each named
defendant participated in certain employment decisions; and (2) each named defendant made
employment decisions based on endorsements of a political party. Id. at 46, 48. Those
interrogatories each related to discrete issues. Moreover, the court's use of the term "narrative" is
inapposite to the United States' objection. There the court used the term in the narrow context of
explaining that the "[t]he interrogatories seek facts, not documents or tangible objects, and the
proper form of response is a narrative answer, not a reference to documents or objects where the
answers might be found." Id. at 48

Defendants' interrogatory reflects a continuing litigation problem. In Lawrence
and Hilt, this Court noted that "blockbuster interrogatories" such as American's
Interrogatory No. 2 "represent a type of excess which in the opinion of the Court has become too
common in recent years." 169 F.R.D. at 662; 170 F.R.D. at 186. In each case, this Court
attempted to discourage the use of such interrogatories. SeeLawrence, 169
F.R.D. at 663. In fact in Hilt, this Court expounded:

Indiscriminate use of blockbuster interrogatories, such as these, do not comport
with the just, speedy, and inexpensive determination of the action. . . .

The nature of the federal discovery rules themselves suggests they are intended to
facilitate reasonable discovery, not unduly burdensome, but selected by each party to fit the
needs of the particular case. . . .This requires counsel in any given case to exercise professional
judgment and determine the priorities of discovery.

. . . . If the drafters of the rules had intended to authorize interrogatories with an
impact as wide as the entire case, they could more realistically and easily have adopted a simple
rule to require every pleading to be accompanied by a statement of all the facts supporting every
allegation and the identifications of every knowledgeable person and supporting document. The
rules, of course, contain no such requirement. They contemplate instead that discovery in each
case be sensibly organized and managed -- and often limited -- to provide each party with
reasonable opportunity to learn information essential to a fair resolution of the case.

170 F.R.D. at 187. Then, this Court explained how proper interrogatories should be drafted:

Each interrogatory should consist of a brief, simple, direct, and
unambiguous question, dealing with one point only. The question should be objective and
nonargumentative. They should not seek narrative answers or attempt to argue,
cross-examine, or impeach.

. . . .Interrogatories should be targeted at discrete issues, rather than
blanketing the case, and should be few in number.

Id. (quoting Schwarzer)(emphasis added).

Finally, any suggestion that the United States is arguing form over substance -- because
American could have addressed a separate but identical interrogatory to each paragraph, or a few
paragraphs, of the complaint -- is dispelled by Lawrence. There, plaintiff submitted
eight interrogatories, one of which addressed 14 paragraphs, a second which addressed 8
paragraphs, and six others that each addressed 6 paragraphs (58 total) of defendant's
79-paragraph answer. See 169 F.R.D. at 660-61. The Court found these eight
interrogatories overly broad and unduly burdensome. In so finding, the Court distinguished the
defendant's "similar" eight interrogatories for the sole reason that defendant's interrogatories
"relate[d] to allegations in only seven of the 79 paragraphs of the complaint." Id. at
663. In short, when propounding interrogatories, this district requires each party "to exercise
professional judgment and determine priorities of discovery," so that interrogatories are drafted
to "'consist of a brief, simple, direct, and unambiguous question, dealing with one point only'."
Hilt, 170 F.R.D. at 187 (quoting Schwarzer, supra.).

I

CONCLUSION

American has not identified any reason for departure from the well-settled practice of
this district, or from other well-settled procedural holdings that overbroad interrogatories
seeking work-product material will not be enforced. Accordingly, the United States respectfully
requests that this Court deny American's motion for an order compelling an answer to
Interrogatory No. 2.

1. In their Memorandum of Law, defendants have clarified that they seek
only information supplied orally by third parties, thereby relieving the United States of the
obligation to summarize information supplied in writing.

2. The Antitrust Division is also authorized to issue investigative
subpoenas for production of documents, answers to interrogatories and oral testimony. 15
U.S.C. § 1312.

3. These memoranda themselves are classic examples of work-product
that is protected from disclosure during discovery. Indeed, defendants acknowledge as much
when they say "American . . . [does] not seek the 'private memoranda that the lawyers for the
antitrust division prepared after their interviews.'" Defendants' Memorandum of Law ("Memo")
at 5.

4. Of course, attorney recollections of interviews also incorporate
impressions and analysis.

5. As discussed in greater detail in B. infra, the United States has
made disclosures of documents and information relating to the investigation leading to the filing
of this case, and relating to other DOJ investigations of anticompetitive practices in the airline
industry.

6. Later, the Court described the situation in these words: "Here is simply
an attempt, without purported necessity or justification, to secure written statements, private
memoranda and personal recollections prepared or formed by an adverse party's counsel in the
course of his legal duties." Id. at. 510.

7. The Upjohn Court also noted that "some courts have
concluded that no showing of necessity can overcome protection of work-product
which is based on oral statements from witnesses," and concluded that it was not necessary there
to decide whether those cases were correct. Id. at 401 (emphasis in original).

10. As discussed in greater detail below, the United States has provided
defendants with several lists of persons and entities, together with affiliations, addresses, and
telephone numbers, as part of its Rule 26(a) Disclosures and in response to Defendants'
Interrogatory No. 1.

11. As noted in Argument C infra, to the extent the
Eoppolo interrogatory required the defendant to provide a narrative of its entire case, it
was objectionable under this court's precedent.

12. Defendants' reliance on Gaynor v. Atlantic Greyhound
Corp., 8 F.R.D. 302 (E.D. Pa. 1948) (Memo at 7), is similarly misplaced because, as in
Eoppolo, the court merely required defendant to "stat[e] any relevant fact known to it
whether obtained from statements taken by its attorney or otherwise," without coupling facts to
specific interviews. Id. at 303.

13. Under defendants' narrow view of the work-product privilege,
nothing would bar an interrogatory requiring attorneys to deliver periodically to opposing
counsel a summary report of each witness interview they conduct as they prepare for trial.

14. Laxalt v. McClatchy, 116 F.R.D. 438 (D. Nev. 1987),
concerned the depositions of two private investigators who possessed relevant information from
before and after their retention by the defendants. While the court held that the investigators
could be questioned about facts relevant to the case, it recognized that the form of a question
could cause the deponent to "reveal counsel's tactical or strategic thoughts." Id. at
442-43. It therefore ordered the questioning attorney to "carefully tailor his questions in the
deposition, so as to elicit specific factual material, and avoid [questions] which could lead to the
disclosure of trial strategies." Id. at 443. As in District Counsel, the court also
held that the investigators could not be forced to identify the particular witnesses they had
interviewed or the documents they had reviewed, since that information tends to reveal which
sources or evidence are considered important and, therefore, counsel's tactical or strategic
thoughts. Id. at 443-44.

15. Such a claim would be surprising, given that American is the
nation's largest air carrier and should be more familiar with persons and companies
knowledgeable about the airline industry and its conduct, which is at issue in this
case, than is the DOJ. For many of the people identified, such as representatives of airports and
travel agents, American has employees dedicated to developing and maintaining relationships
with them.

16. Thus, American's single interrogatory could be construed as literally
dozens of interrogatories. SeeHilt v SFC, Inc. 170 F.R.D. 182, 188 (D. Kan.
1997); Lawrence v. First Kansas Bank & Trust Co., 169 F.R.D. 657, 661 (D. Kan.
1996). Moreover, given that American wants summaries of what 161 people told DOJ attorneys,
its interrogatory looks even less like it should be counted as only one interrogatory. Where the
parties have agreed to limit the number of interrogatories, as is true here, such an interrogatory is
especially improper.